Garfield v. Mackinney

Margaret Mary J. Mangan, J.

In the above-entitled action, after hearing, traverse overruled. Section 227-a of the Civil Practice Act authorized service of a summons upon an attorney who is representing a nonresident plaintiff in a pending action or proceeding. The commencement of the Surrogate’s proceeding by the nonresident plaintiff was a submission by her to the jurisdiction of our courts for the purpose of service of process. While the Surrogate’s proceeding was subsequently dismissed for lack of jurisdiction of subject matter, it was nevertheless begun or commenced in the literal terms of section 227-a with jurisdiction over the person of the nonresident plaintiff. It was the price the plaintiff had to pay for invoking the jurisdiction of the Surrogate’s Court to assert her claim. She was then deemed to have designated her attorney of record as agent to receive service of process during the pendency of the proceeding. There is no merit to the contention that section 227-a of the Civil Practice Act does not apply to the Municipal Court of the City of New York. The section specifically provides that a nonresident plaintiff may assert a claim in any court of this State. The Law Revision Commission in its 1949 report gave considered analysis to a situation where a nonresident plaintiff institutes an action in a court of limited jurisdiction such as the Municipal Court, and a defendant therein having a counterclaim in excess of plaintiff’s claim not being afforded an opportunity to assert Ms full claim for jurisdictional limitation of amount. Section 227-a therefore provides for an independent action by a resident defendant, restricted oMy to the nature of the action, requiring it be one which could be asserted by way of counterclaim had the nonresident plaintiff first instituted action in the Supreme Court. Surely where a nonresident plaintiff has a right to institute an action in a court of limited jurisdiction, a corresponding right should exist in a resident defendant as and for his independent cause of action.